Opinion

Howard Beckett v. Department of Commerce

Court: Merit Systems Protection Board
Filed: May 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HOWARD BECKETT, III, DOCKET NUMBER

Appellant, AT-1221-22-0236-W-1

DEPARTMENT OF COMMERCE, DATE: May 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Howard Beckett, III , Sumter, South Carolina, pro se.

Timothy Paul Murphy , Esquire, and Ashley Geisendorfer , Washington,

D.C, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied him corrective action in his individual right of action (IRA) appeal. On

petition for review, the appellant, among other things, challenges the

administrative judge’s credibility determinations and accuses the administrative

judge of bias. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as MODIFIED to

supplement the administrative judge’s analysis of the contributing factor

criterion, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the appellant did not make a

protected disclosure, and the appellant offers no sufficiently sound reason to

overturn the credibility determinations on which that finding was based.

¶2 The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant’s

challenges to the administrative judge’s credibility determinations, which were

based on the administrative judge’s observation of witnesses’ demeanors, do not

provide sufficiently sound reasons for overturning those determinations. It was

appropriate for the administrative judge to compare the credibility of the agency

witnesses who terminated the appellant with that of the appellant—who

demonstrated himself to be not credible regarding the significant issue of his

reason for not working—and credit the agency witnesses to find that the appellant

did not establish that he made a disclosure to them. 2 See Hillen v. Department of

the Army, 35 M.S.P.R. 453, 458 (1987) (stating that, to resolve credibility issues,

an administrative judge must, among other things, identify the factual questions in

dispute and state which version he believes); Initial Appeal File (IAF), Tab 75,

Initial Decision (ID) at 10-11.

¶3 In addition, we agree with the administrative judge that the appellant’s other

statements in this matter bolster the conclusion that the interaction in which the

appellant was allegedly encouraged to commit timecard fraud did not occur. ID

at 11. The appellant stated in his complaint to the Office of Special Counsel

(OSC) that, “after [he] completed training for some reason, [he] was not getting

cases and had to speak with [his direct supervisor] a lot trying to get cases

assigned.” IAF, Tab 1 at 8. He claimed that his direct supervisor encouraged him

to commit timecard fraud during those conversations. Id. On review, the

appellant similarly claims that he “never was able to have cases because they

couldn’t be assigned” and that his supervisor told him in the meantime that “she

was stealing and once [he got] cases [he] will be too.” Petition for Review (PFR)

File, Tab 1 at 4.

¶4 The record contradicts the appellant’s assertion that he was never assigned

cases. A document related to the appellant’s termination shows that he completed

Enumerator training on August 13, 2020, and posted his availability to work on

August 14, 16, 17, 18, and 30, 2020. IAF, Tab 5 at 5. The appellant confirmed

during the hearing that he posted his availability to work on several of those dates

on August 12, 2020, before completing training. IAF, Tab 68, Hearing Recording

(HR) Day 1 (testimony of the appellant). He also testified that, based on his

posting of his availability, he received cases to work on those dates. Id. In a

written statement, the appellant’s direct supervisor described an email or text

message exchange with the appellant on August 14, 2020, the day after he

Further, the appellant’s attempts to explain his demeanor during the hearing do not

demonstrate why any of the factors which he claims affected his demeanor prevented

him from testifying credibly. Petition for Review File, Tab 1 at 5-6.

completed training, in which he stated that he had cases that day, which he

ultimately did not complete because, as he later claimed, “he had something to

do.” IAF, Tab 9 at 39. Because the appellant was assigned cases to work

promptly after completing training, it is not credible that he would have had the

discussions with his supervisor about lacking cases in which he was allegedly

encouraged to commit fraud. We therefore agree with the administrative judge

that the appellant did not establish that his direct supervisor ever encouraged him

to commit fraud, and that he thus did not establish that he made a disclosure

protected under 5 U.S.C. § 2302(b)(8).

The administrative judge correctly found that, even if the appellant did make a

protected disclosure, he did not establish that it was a contributing factor in his

termination.

¶5 The administrative judge found in the alternative that, even if the appellant

did make a protected disclosure, he did not establish that it was a contributing

factor in his termination. ID at 11 n.10. In so concluding, the administrative

judge explained, among other things, that the officials who terminated the

appellant credibly testified that they were unaware of his fraud allegation, that the

appellant thus did not meet the knowledge/timing test, and that the agency’s

reasons for terminating the appellant, namely his nonperformance of work and

refusal to participate in a performance observation, were overwhelmingly strong.

Id. We agree.

¶6 Nevertheless, the Board has held that, if an administrative judge determines

that an appellant has failed to satisfy the knowledge/timing test, he shall consider

other evidence, such as, in addition to evidence pertaining to the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed at the proposing or deciding officials, and

whether these individuals had a desire or motive to retaliate against the appellant.

Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). The

administrative judge only considered the first of these factors, so we address the

remainder here. As further evidence of lack of contributing factor, the appellant’s

fraud allegation was personally directed at his direct supervisor and not at the

officials responsible for his termination, and there is no credible indication that

those officials had any desire or motive to retaliate against him. We find the

appellant’s speculative testimony that the officials responsible for his termination

“had to sign off” on falsified timecards due to the scale of the alleged fraud

unpersuasive. IAF, Tab 72, HR Day 2 (testimony of the appellant). We thus

conclude, considering all of the Dorney factors, that even if the appellant did

make a protected disclosure, he did not establish that it was a contributing factor

in his termination.

The appellant’s additional claims on review do not warrant disturbing the initial

decision.

¶7 The appellant claims that the administrative judge was biased against him

due to his personal appearance and accent. PFR File, Tab 1 at 4, 6, 11, 14. In

making a claim of bias against an administrative judge, a party must overcome the

presumption of honesty and integrity that accompanies administrative

adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386

(1980). The party must show that any such bias constitutes extrajudicial conduct

rather than conduct arising in the administrative proceedings before him.

Schneider v. Department of Homeland Security , 98 M.S.P.R. 377, ¶ 7 (2005).

Moreover, an administrative judge’s conduct during the course of a Board

proceeding warrants a new adjudication only if the administrative judge’s

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)). Our review of the record does not reveal any such extrajudicial

conduct, deep-seated favoritism, or antagonism on the administrative judge’s part.

The appellant’s claims of bias, which are merely speculative, thus do not

overcome the presumption of honesty and integrity that accompanies an

administrative judge.

¶8 Finally, despite the appellant’s discussion of the administrative judge’s

denials of his motion to compel discovery, motion to sanction the agency, and

motions to disqualify or exclude the agency’s representative, PFR File, Tab 1

at 4, 6, 8-9, 11-14, we discern no abuse of discretion in those rulings in our

review of the record, leaving us no reason to disturb them. See Social Security

Administration v. Levinson, 2023 MSPB 20, ¶ 53 (stating that the Board will not

reverse an administrative judge’s determination regarding sanctions absent an

abuse of discretion); Parker v. Department of Housing and Urban Development,

106 M.S.P.R. 329, ¶ 9 (2007) (stating that the Board will not reverse an

administrative judge’s rulings on discovery matters absent an abuse of

discretion); White v. Department of the Air Force , 71 M.S.P.R. 607, 613 (1996)

(stating that the Board may not disqualify an agency’s representative on any basis

not provided for at 5 C.F.R. § 1201.31(b) (conflict of interest or conflict of

position)). 3

It appears that the agency executed a purported correction of the appellant’s

termination Standard Form 50 at some point by canceling his termination and replacing

it with a resignation. PFR File, Tab 1 at 14; IAF, Tab 39 at 11. Neither the agency nor

the administrative judge addressed this fact. Nevertheless, we find the cancelation of

the appellant’s termination immaterial to the disposition of this appeal. The appellant

exhausted the issue of his separation from the agency with OSC, IAF, Tab 1 at 14-19, a

cancelation of the termination would not moot the appeal because of the remaining

damages issue, and however the appellant’s separation is characterized, we agree with

the administrative judge that the appellant did not establish a prima face case of

whistleblower reprisal.

The appellant claims that his third-level supervisor “implied” during the hearing that

she terminated him partly because he helped someone file an equal employment

opportunity (EEO) complaint. PFR File, Tab 1 at 4. It does not appear that the

appellant exhausted a claim of retaliation for assisting another employee with an EEO

complaint under 5 U.S.C. § 2302(b)(9)(B) with OSC. See Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 10 (stating that the Board’s jurisdiction over an

IRA appeal is limited to those issues that have been previously raised with OSC); IAF,

Tab 1 at 14-19, Tab 6 at 11-17. The administrative judge thus found that the only issue

within the Board’s jurisdiction was the appellant’s claim that the agency terminated him

after he disclosed that his first-level supervisor encouraged him to commit timecard

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

fraud. IAF, Tab 10. We find no reason to disturb this ruling.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the